CASE LAW UPDATE

Facts: The applicant is in the transport business and the owner of a truck. The truck was in a collision. The applicant caused the truck to be re-sprayed and fitted it with a new engine and cab. In the process of restoring the truck, he foolishly requested the panel beater to remove the VIN number plate of the truck as he was unaware it was a criminal offence. The truck in the meantime was sold to a logistics company. A representative of the applicant was sent to the police to obtain a clearance certificate. The police then seized the truck on the basis that the engine and or chassis numbers have been tampered. Due to the different versions as to how the VIN number plates appeared on the cab, the applicant was charged with several criminal charges. Aggrieved by what the applicant perceived as an unlawful seizure of the truck, it approached the court on an urgent basis seeking a rule nisi.

Application: The court granted an order ordering the police to immediately release the truck and to issue a clearance certificate, even though the applicants only sought interim relief pending the final determination of the application. The police immediately lodged an application for leave to appeal as they were of the view that the order was final in effect, which the applicants were not entitled to. Leave to appeal was refused and the police thereafter petitioned the Supreme Court of Appeal for leave to appeal and it is that petition that is currently pending. The applicant seeks an enforcement order, on an urgent basis, in terms of section 18 of the Superior Courts Act 10 of 2013, whereby the operation and execution of the judgment and order not be suspended pending the outcome of the petition by the police to the Supreme Court of Appeal, including the outcome of such appeal in the event such leave being granted.

Discussion: The question is whether exceptional circumstances as envisaged in sections 18(1) and 18(3) exist to grant the exceptional relief and what the prospects of success will be on appeal. The respondent contended that the applicant failed to advance any facts to show the police acted unlawfully when the truck was seized. Secondly, the court erred in granting final relief when the applicants only sought interim relief and impermissibly stepped into the shoes of the police, by ordering that a clearance certificate be issued without any evidence, or submissions by counsel, whether the prerequisites for such a clearance were satisfied. And lastly, the applicants failed to demonstrate on a balance of probabilities that they will suffer irreparable harm if the order for execution is not granted. An individual can possess a tampered vehicle if there is lawful cause for such possession and sections 68(6)(b) and 89(1) of the National Road Traffic Act 93 of 1996 do not oust the spoliation remedy.

Findings: The real issue is not the possession of a tampered vehicle without lawful cause but whether the police acted unlawfully when the truck was seized. That issue is very much alive between the parties in the pending petition. On a conspectus of all facts, the court is not persuaded that the applicant has shown exceptional circumstances that warrants the granting of the relief sought pending the outcome of the petition. Counsel for the police placed on record that in the event the petition fails then the vehicle will immediately be returned to the applicant. Furthermore, the issue of granting final relief when only a rule nisi was sought is also a relevant point to be considered on petition. An order in favour of the applicant will be of little comfort as the police will be entitled in terms of section 18(4) to an automatic appeal to a full court and such order pending the outcome of that appeal will automatically be suspended.

Order: The application is dismissed.

LE GRANGE ADJP

Facts: The deceased’s body was found inside his bedroom, with his mouth stuffed and with neckties around his neck. Investigations by the police revealed that the bank card of the deceased was used at an ATM in a garage at KwaZulu-Natal. The video footage of this garage showed the appellant drawing the money at that ATM. The tracker, which was fitted onto the vehicle of the deceased, led the police to where he was found in possession of the deceased’s vehicle, together with the deceased's belongings, amongst others, his house key and a wristwatch.

Appeal: The appellant was sentenced to life imprisonment in respect of murder, 15 years’ imprisonment for robbery with aggravating circumstances, and two years’ imprisonment for theft. The appeal is limited to the murder and the robbery with aggravating circumstances convictions. It was contended that: the evidence did not establish beyond a reasonable doubt that the murder was premeditated; and that the appellant formed the intention to take the deceased’s belongings after the assault, and so he should have been convicted of theft.

Discussion: The appellant had made a statement to Colonel Makamu where he described how he had been dating the deceased, that they had been drinking that day, and got into a fight, and that the deceased’s head hit the wall. Counsel for the appellant submitted that there was no evidence of prior planning or premeditation on the part of the appellant. The attack on the conviction of robbery with aggravating circumstances is that a possibility exists that the intention to misappropriate the deceased’s belongings was formed after the deceased was killed, or at least, after the appellant believed the deceased to be dead.

Findings: The way that the deceased’s mouth was stuffed and the way that he was tied up is also a signal of the intention not only to kill, but of a well-orchestrated plan. In addition to being incapacitated, the appellant locked the door of the deceased’s bedroom and the butler door leading to the outside. There is no doubt that on the facts of this matter, there are overwhelming proven facts whereupon the High Court could infer premeditation. The argument in relation to the conviction of robbery with aggravating circumstances is misplaced. The evidence is clear that the deceased was not only assaulted, but his hands and feet were tied up. Tying is another form of overcoming resistance from a victim, and this took place in this case before the property of the deceased were taken. What took place clearly amounts to robbery with aggravating circumstances.

Order: The appeal is dismissed.

KGOELE JA (MABINDLA-BOQWANA JA and MANTAME AJA concurring)

Facts: The applicant, Mr Mabhaso, commenced employment at Astron Energy during 2012 as an Operating Standards Specialist. He signed up for a course to start in 2019 at the University of Cape Town and the company paid the initial amount required of R25,500 into his bank account. The applicant’s account was overdrawn and he only paid the university R10,000 and did not inform the company. The company later asked the applicant for proof that he paid the full amount and a disciplinary hearing followed. He was dismissed for misappropriation or unauthorized use of company funds provided to him for his studies.

Application: The commissioner at the bargaining council found that the applicant’s dismissal was fair and that the applicant was guilty of a serious charge which went to the core of the employment relationship and that he was a senior employee and not unsophisticated. The applicant seeks condonation for the late delivery of the review application and an order reviewing and setting aside the arbitration award. The applicant received the arbitration award in August 2020 and the condonation and review applications was delivered in January 2024.

Condonation: The reason for the delay is that the applicant instructed a legal representative but on his enquiries about progress he was met with excuses. He later questioned whether a review application had been launched and ended up filing a complaint at the Legal Practice Council against the legal representative for his failure to properly deal with his instructions. The explanation, for an educated and sophisticated individual, simply amounts to no explanation. He offers no explanation as to why he never enquired how the review process works and failed to attach any correspondence between himself and his attorney in respect of this period. The applicant, based on his own version, took no responsibility for his matter.

Prospects of success: The payment was specifically earmarked to pay the university fees. It was not paid to him to pay personal expenses or rearrange his debt. Consequently, the applicant’s conduct amounted to misappropriation of funds. Misappropriation of funds constitutes a serious offence and it was the company’s case that the applicant’s conduct caused a breach of the trust relationship, particularly in light of the applicant’s senior position. More concerning was the way he responded to the company when queried about the payment and that he initially asked the company to pay the full outstanding amount which included the amount not paid by him. The applicant does not have any prospects of success.

Order: The condonation application is dismissed. There shall be no order as to costs.

DE WET AJ

Facts: A developer (M & T) undertook two sectional title developments. The developer concluded a written agreement with Telkom in terms of which Telkom undertook to supply the materials necessary to build and install the infrastructure necessary to enable Telkom to provide telecommunications services to the developments. Metro Fibre Networx (MFN) concluded a written agreement with the Home Owners Associations of the two developments in terms whereof MFN obtained permission from the Home Owners Associations to access the ducts and roll out fibre optic cables in the ducts. Acting in terms of the agreement, MFN obtained access to the ducts and rolled out its fibre optic cables. Telkom did an inspection of the ducts and found that MFN had utilised the ducts to roll out its fibre optic cables. This, according to Telkom, was unlawful in that no permission was obtained by MFN from Telkom. Telkom complained to ICASA that MFN was obliged by Section 43 of Electronic Communications Act 36 of 2005, as well as the Electronic Communications Facilities Leasing Regulations, to approach Telkom for a lease before installing its fibre cables in ducts on the property of the estates and that MFN had failed to do so.

Application: The committee found that it had jurisdiction to entertain the complaint. The committee concluded that MFN had contravened Section 43 of the ECA read with Regulation 3 of the Electronic Communications Leasing Regulations in that it gained access to Telkom's electronic communications facility without following the prescribed procedures. Being dissatisfied with the findings, the applicant approaches the court for an order that the order and recommendation granted by the Complaints and Compliance Committee (CCC) be reviewed and set aside.

Discussion: The fundamental argument by MFN is that because of the principle of accession, the facilities in question adhere to the immovable property of the respective Home Owners Associations of the two estates. This being the position, nobody but the HOA's can be the owners of the facilities, least of all Telkom. Further, because Telkom is not the owner of the facilities, section 43 of ECA is not applicable, and no permission from Telkom is required, nor is it required by section 43 for MFN to enter into a lease with Telkom. The factual position seems to be that the trenches were dug in the soil at certain depths, according to the specifications of Telkom. Ducts were then installed in the trenches. The trenches were covered with soil and manholes were constructed with bricks and mortar to give access to the ducts in the trenches. Cables were then installed through pipes (sleeves) in the ducts to connect to the internet and provide data to residents in the estates. The ducts cannot be removed without damaging them. The cables (whether copper, fiber or otherwise) can in fact be removed and re-used. The ducts, piping, cabling, manholes and its covers etc can be referred to as the “infrastructure”. Telkom envisaged that the infrastructure would belong to it and for its exclusive use. The pipes, manholes and manhole covers can be removed by Telkom without damaging them. The cables rolled out by Telkom in the pipes in the ducts can be removed and remain the property of Telkom.

Findings: Telkom complained to ICASA that MFN accessed its facilities without going through the prescribed motions set out in sections 43 and 44 of the ECA. MFN alleges that it is only incumbent upon it to adhere to the provisions of section 44 once Telkom proves it is the owner of the facility in question. Telkom was entitled to approach ICASA and complain as it did. It was entitled to do so having regard to the fact that it was the holder of the servitude over the land of the HOA's in which the ducts were constructed. It will also, in terms of section 22, be entitled to remove its electronic communications network, etc, as long as it is in movable parts. The immovable duct forms part of the land owned by the HOA's. Ownership was not a requirement for Telkom to lawfully approach ICASA for relief in terms of section 43 of the ECA. None of the grounds advanced by the applicant for review of the investigation findings and recommendations of the CCC or the order by ICASA hold water.

Order: The application for review is dismissed with costs.

BRAND AJ